It’s inevitable that you will have to deal with the Occupational Safety and Health Administration (OSHA).
As with most things in life, planning ahead for OSHA inspections will serve you well. It’s true you may still be cited, but having a current and well-practiced playbook will almost certainly guarantee a more favorable outcome with your organization.
EHS Today spoke with Micah Dickie, a litigator for Fisher Phillips based in Atlanta. As a member of Fisher Phillips’ Workplace Safety and Catastrophe Management Practice Group, Dickie represents clients during inspections and defends them during contested OSHA matters.
Dickie will offer guidance on preparing for those dreaded OSHA visits at the 2023 Safety Leadership Conference, being held in Orlando, Fla., from Sept. 18-20. He will also talk about Fourth Amendment concerns and OSHA’s burden of proof to sustain a citation, if issued. More information about the conference, including registration, can be found here. Below is a preview of what to expect from his presentation.
EHS Today: Let's say OSHA's at the door. What's the first thing safety professionals should do?
Dickie: Refer to the written plan the company put in place ahead of an OSHA inspection. First steps in such a plan would, after checking the OSHA inspector’s credentials, involve:
- Asking OSHA to wait in a conference room or office for a reasonable period of time until the company attorney or other designated contact can also participate in an opening conference with OSHA to discuss the reason for OSHA’s visit;
- If the company reported an accident recently, planning out the route from this initial area to the site of the accident;
- Sending a team quickly to ensure that no hazards are in plain view of the route OSHA will travel to the area of the accident;
- Ensuring OSHA logs are available and accurate upon OSHA’s request; and
- To the extent possible, limit the use of powered industrial trucks (PITs) and lockout/tagout (LOTO) work on the route where OSHA may observe them.
What shouldn't safety professionals do?
They should not admit any violations when speaking to OSHA, no matter how informal the questions posed. Also, other than OSHA logs and hazard communication documents, they should not provide any documents during OSHA’s first worksite visit.
Instead, they should ask for other documents to be requested in writing. Safety professionals also cannot alter the scene of any accident, and they should not do a complete work stoppage during an OSHA visit. Doing so raises more questions in OSHA’s mind and distracts from the purpose of their visit.
How should safety professionals prepare employees if OSHA wants to ask them questions?
Supervisors, leads and managers should not be interviewed on the first OSHA visit, as they can be prepped by the company’s attorney or EHS professional before being interviewed. For non-supervisors, while the company cannot be present during those interviews, the company should apprise those employees that the company is cooperating in the OSHA inspection.
As such, the company must make the employees available for an interview and emphasize that it is the employees' choice about what to say or not say to OSHA. Lastly, the company should remind the employees of the relevant and recent training that may relate to OSHA’s visit.
What are some common mistakes you see companies make when OSHA investigates?
Companies make the mistake of confusing cooperation and professionalism with being helpful. One example is telling OSHA things that OSHA has no right to know. OSHA has the burden of proving safety violations against an employer, and it has the authority to investigate workplace safety complaints and accidents.
However, OSHA’s authority is limited to the reason for the inspection—for example, the complaint or accident. Employers often discuss items with OSHA that are wholly unrelated to the reason for OSHA’s inspection. Once that door is open, it is difficult to close it.
Similarly, companies allow OSHA to walk through areas it has no right to access and to speak to supervisors without first understanding the legal ramifications of any admissions by those supervisors on the employer once a citation is issued. Any statement made by an EHS professional or supervisor that admits a safety violation can result in tens or hundreds of thousands of dollars in penalties from OSHA.
What rights and protections do companies have?
OSHA inspections are governed by the Fourth Amendment, so companies have rights related to their property. Without a warrant, any inspection is based on the company’s cooperation during the inspection.
If OSHA will not stick to the scope of discussion agreed to during the opening conference, the company should object and insist on limiting the area OSHA sees to the area discussed in the opening conference. Legal counsel can be key in ensuring that an employer’s Fourth Amendment rights are preserved, as once these protections are waived, the damage to the company may be difficult to mitigate.
What's one thing you hope attendees learn from your session at the Safety Leadership Conference?
I hope attendees learn that having a plan before OSHA shows up on what a company’s rights are—and sticking to that plan to protect those rights—can improve safety and save employers thousands in citations and lost business.